"At my age, I have been right enough times to be unafraid to speak up and wrong enough times not to be offended if someone tells me "You are an idiot." Hat tip to Dennis Gorman, Esquire: Raconteur, Renaissance Man, Curmudgeon, and Dear Brother In Christ
Copyright 2010, 2011, 2012, 2015 by Michael R. McCarty

30 April 2008

PROPERTY TRUSTS AS AN ANCIENT AND ESSENTIAL TENET, SANTA CLAUS, AND OTHER MYTHS

Recently, a number of PC(USA) presbyteries and at least one synod have begun to sing a new song in four part harmony with Louisville. Sandwiched in between old favorites such as “The NWAC And EPC Are Breaking Up That Old Gang Of Mine” and “There’s No Business Like The Real Estate Business,” they have added to their repertoire, “My Old Kentucky Home (That Is Held And Always Has Been, Nonetheless, In Trust For The PC(USA).”

A new myth has been added to the pantheon of Santa Claus, the Easter Bunny and the Tooth Fairy. More and more PC(USA) boosters make the claim that "the PC(USA) clearly owns the property of the local church" or "the 'property trust' has always been a part of presbyterian polity."

Looking at their claims, I have noticed a pattern. The folks spouting this myth are mainly the bureaucrats at presbyteries, synods and in Louisville, or folks who have aspirations in that direction.

“Why,” you may ask, “the need to convince people that the existence of a trust has ‘always’ been part of presbyterian polity?”

Quite simply stated, if there is no coercive property trust, the PC(USA) has no means of blocking disaffiliation, one of the permissive powers of the congregation. The civil courts cannot enforce purely ecclesiastical rulings by church courts, so any decision by, e.g., the General Assembly Permanent Judicial Commission that a congregation has improperly terminated its affiliation with the PC(USA) would be unenforceable in the civil courts.

Let’s set the record straight. The so-called property trust provision in the PC(USA) Book of Order (G-8.0201) is a very recent reaction to the decision of the United States Supreme Court in Jones v. Wolf (1979).

When compared to the rest of the Book of Order, Chapter VIII is clearly a modern legal afterthought dropped into a political system that had developed over centuries. From the glorious language describing the “Great Ends of the Church” found in G-1.0200 to the discussion of historic organizational practices throughout the Book of Order, what is traditionally referred to as “presbyterian connectionalism” is apparent. It is a system based on political comity and shared theological beliefs. See, e.g., Book of Order § G-1.0307 (“. . . all church power . . . is only ministerial and declarative”).

The repeated assertion of a centuries-old trust is demonstrably false. The idea that the lands and wealth of deposed bishops of the English Roman Catholic Church were simply going to be handed over to a new centralized authority rewrites the history of the 16th Century reformation.

In fact, the PCUSA historically rejected a property trust. The Westminster Confession of Faith, which was “the” sole confessional document of American presbyterianism until 1967, demonstrates that the concept of a property trust is not an historic position within the denomination. The 1647 text of the Westminster Confession of Faith (still in effect today) states:

Nor doth their communion one with another as saints, take away, or infringe the title or property which each man hath in his goods and possessions. Book of Confessions, §C-6.148.

It is undisputed that no trust provisions were to be found in the constitution of any presbyterian denomination prior to the U.S. Supreme Court’s decision in Jones v. Wolf in 1979. The UPCUSA (May 23, 1981) and, later, the PCUS (1982) adopted markedly differing assertions of a property trust just before the 1983 reunion. They were the only “presbyterian” denominations to do so. The PC(USA) version became G-8.0201 after the 1983 reunion.

If such a trust “has always been part of the Presbyterian theology and practice,” there was no need for the General Assembly of the PCUSA to attempt to amend its constitution to include an express trust provision in the late 1920s. That attempt failed of ratification in the presbyteries, Minutes, 142nd General Assembly at 54-55, 59 (1930). So, as late as 75 years ago, the historical record affirmatively confirms that in the American presbyterian church, the presbyteries wanted no part of a property trust.

The trust provision proposed by the 141st General Assembly (1929) and rejected by the presbyteries declared

Each particular church shall cause a corporation to be formed and maintained under the laws of the state where it is located, so as to enable it to receive, hold, and transfer property and to facilitate the management of its temporal affairs. The charter or articles of incorporation shall declare that its property is held in trust under the constitution of and for the Presbyterian Church in the United States of America.

It is interesting to note that this “trust” provision was mandatory, placing the onus on the congregations and corporations to take some affirmative action to create the trust (“[t]he charter or articles of incorporation shall declare. . .”)(emphasis added).

A comparison of the 1930 and 1980 proposals is telling. The 1930 proposal required individual congregations to affirmatively act to place their property in trust for the denomination. The 1980 amendment (now G-8.0201, et seq.) simply and unilaterally asserted the existence of an aspirational trust, that is, the hope that congregations would see fit to place their property in trust. It did not take the necessary step of obtaining some assignment of an interest in local property.

The idea that a trust provision adopted by an entity that had no existing interest in property could unilaterally impress a trust upon property purchased prior to the adoption of the constitutional amendment has been recently rejected.

"In the first instance, we note that a member of a voluntary association is bound by the amendments to the association’s rules so long as the amendments (1) are duly enacted; and (2) do not deprive the member of vested property rights without the member’s explicit consent." In re: Church of St. James the Less, 888 A.2d 795, 807-808 (Pa. 2006).

Accordingly, having stated its desired result (a trust), it was incumbent upon the PC(USA) and its presbyteries to complete the process. They should have obtained from the individual corporations trust deeds or other instruments manifesting their respective intent to transfer their property into a trust for the benefit of the PC(USA). Until that event occurred, the property remained the sole property of the congregation/corporation holding title to it.

About Me

I am, first and foremost, a child of God, saved by His Grace through His Son, Jesus. I am father of 8, including my four little Angels who are waiting with the Master who loves the little children) , and grandfather of the two smartest and most photogenic grandchildren in the world.
And to quote Lee Marvin, "once, by God, I was a Marine."
I am an admirer of all sorts of fire arms. I consider the Second Amendment to be the guarantor of all of our other constitutional rights.
I think there ought to be a Constitutional Amendment outlawing the Designated Hitter and the insane practice of awarding World Series home field advantage to the league that won the All-Star Game.
I am kept safe and well-shepherded by Ava T. Dog.